On Light and Lawyers: A Response to Dr. Edward Peters

My article – regarding the dilemma created for Catholic lawyers related to whether or not the local ordinary’s permission is required before seeking a civil divorce – has received a reply from the internet’s pre-eminent canon lawyer, Edward Peters. Since I am not a canon lawyer, I welcome any correction from a competent authority (and blogmeister Dr. Peters certainly qualifies). Instead, I was treated to an assortment of rhetorical rope-a-dope misdirections. As a lawyer, I recognize the application of the tactical maxim – if you don’t have the law or the facts on your side, confuse the issue.

Dr. Peters levels that I am a petty complainer who maligns saintly men and the Church herself and that I would be better served doing some basic internet research before inserting my virtual foot into my virtual mouth.

Dr. Peters takes considerable umbrage at my arguments – so “painfully and obviously ignorant” as to compel him to “sit down and make this reply” – based on two misconceptions, both centered on the straw man argument of confusing the part and the whole. First, he takes my solitary use of “the Church” to mean the entire Church, globally and throughout time. But my intent, and an honest reading of my first article makes this clear, is to take “the Church” – along with “the churchmen” and “pastors and bishops” – as the group most actively touching our lives: the representative majority of Church leadership over the past 50 years. In fact, the great care the Universal Church throughout the ages has taken in guiding and forming those within the legal profession puts into stark relief the negligence of Church leadership in the modern age. Can anyone argue that “the Church,” meaning the present leadership, has utterly failed to promulgate Humanae Vitae to the faithful? Or protect young men from predators within its ranks?

Second, Dr. Peters widens my criticism of his use of Fr. Felix Cappello, S.J. to an “insulting” attack on Fr. Cappello’s person and scholarship as a whole. I’ve done nothing of the kind. I suspect that the “don’t ask, don’t tell” position promoted is more Dr. Peters’s reading of Fr. Cappello than Fr. Cappello himself. But even if Dr. Peters has accurately reflected Fr. Cappello’s position, still I challenge it – and I have sinned no more than if I point out that St. Bernard of Clairvaux and St. Thomas Aquinas were wrong in denying the doctrine of the Immaculate Conception.

Now let’s talk about the meat of my argument – that the Church (as clearly defined above) needs to expressly consider the part civil lawyers are asked to play in American divorce proceedings as the Church decides whether ecclesiastical permission is required to divorce. In response, Dr. Peters – a canon law professor at Sacred Heart Major Seminary, Detroit and referendary of the Supreme Tribunal of the Apostolic Signatura, Rome – admits that his first inclination is to dismiss my concrete reality as a Catholic lawyer trying to balance the duties of faith and profession with “something akin to ‘Okay. So, deal with it.’” He then challenges me to do some “googling,”* go read some books, and generally engage in self-study to determine my moral duties as a Catholic lawyer.

In fact, I began that process nearly four years ago. What I learned was that there was no guidebook for American Catholic lawyers currently available, and only an extremely rare volume from 1963 was available secondhand. So I took two years to write the book for Catholic lawyers for myself that didn’t exist. (N.B.: This was done with the full and gracious support and approval of my local bishop, lest I be accused of being a bellyacher who indicts the Church top to bottom.) What I discovered was not a conspiracy of silence, but a rich body of teaching that has been ignored, Humanae Vitae-style.

Let’s set aside googling for a moment and take a look at that rare 1963 guidebook, titled the Catholic Lawyers Guide. It is the work of the Catholic Lawyers Society in Dr. Peters’s own Archdiocese of Detroit and bears the imprimatur of Archbishop John F. Dearden (hardly a theological “right-winger”) from May 21, 1963. The guide is replete with references to the very best theologians and thinkers of the day, including the illustrious Fr. Francis J. Connell, C.SS.R., author of the moral theology guidebook Morals in Politics and Professions, dean of the School of Sacred Theology at Catholic University, charter member and first president of the Catholic Theological Society of America, and peritus for the Second Vatican Council. What does that book say about the topic at hand on pages 105-106?

Some dioceses have had, or do have, an excommunication attached to anyone who seeks civil divorce or civil separation without permission from the Church. But even if such a penalty is not attached, the Catholic who goes ahead without such a permission, except in extreme cases, puts himself in a most difficult position. He is not fulfilling his duties and he has set himself up as his own judge in a matter in which he is forbidden to judge.

Dr. Peters offers a quote from 1956 from Dominic Prümmer, O.P. supporting the proposition that both the civil lawyer and the uncatechized layman deserve blissful ignorance of the requirement to obtain the ordinary’s permission to divorce: “In practice a confessor should not cause disquiet to any Catholic advocate who cannot refuse to undertake such cases without very serious inconvenience, provided that there is no scandal and nothing more is intended than the civil effects of the divorce” (emphasis from Dr. Peters). The more recent 1963 Catholic Lawyers Guide, on page 106, states (emphasis mine):

A lawyer who takes the case of a Catholic desiring a civil separation or a civil divorce from a valid marriage, when the Catholic does not have ecclesiastical permission for such action is putting himself in a state of sin. It would seem that any good Catholic lawyer would be happy to let the Church make such a difficult decision and not assume to himself something which he is definitely forbidden in conscience to do.

This is not exactly “Okay. So, deal with it.” The Catholic Lawyers Guide clearly contemplates lawyers’ reliance on ecclesiastical input and speaks to the “public good” dimension of permission to divorce, which Dr. Peters avoids.

The Catholic Lawyers Guide also warns of the moral hazard of civil lawyers assisting in a non-Catholic divorce:

In dealing with a non-Catholic, the Catholic lawyer should proceed cautiously. He must bear in mind that the morality of a civil divorce action always involves the basic question of whether or not the action taken by the plaintiff in a given instance involves sin. If it does, the lawyer must remember that he is not to participate in the sin of another; neither may he give scandal.

While representing the plaintiff in a forbidden divorce action may not in a given case be a formal cooperation, it is almost certainly proximate cooperation. This demands a very serious reason indeed for the plaintiff is doing something seriously sinful. If scandal cannot be avoided, no reason is serious enough to allow the lawyer to act.

In the chapter on the duties of a Catholic lawyer in his book Morals in Politics and Professions, pages 110-111, the aforementioned Fr. Connell states:

May a Catholic lawyer undertake a divorce case? Generally speaking, the answer must be in the negative[.] … Moreover, the Catholic lawyer should know that the Third Council of Baltimore forbids Catholics in the United States to approach the civil court for the purpose of obtaining a separation a thoro et mensa (from bed and board), without first consulting the ecclesial authorities. It would be the proper thing for a Catholic lawyer to bring this legislation to the notice of a Catholic seeking his services for the introduction of a suit for a civil separation.

Given that Fr. Connell makes it incumbent upon a Catholic lawyer to inform the Catholic client of canon law requirements, how exactly are Catholic civil lawyers supposed to know about that canon law requirement in the first place? As googling was not an option in 1963, I will offer that there was an expectation that “the Church” was taking care to inform civil lawyers. We may also surmise that the provision of this information was not viewed as an instance of Prümmer’s “disquieting” the Catholic advocate.

Sticking with the “public good” aspect of divorce, let’s turn it up a notch and see what the 1963 Detroit guide states about judges participating in divorce proceedings As Dr. Peters points out Pope John Paul II’s address to the Rota, so I point to the guide’s quote on page 110, referencing Pope Pius XII’s November 7, 1949 address to the convention of the Union of Italian Catholic Jurists, wherein the Holy Father stated:

In particular a Catholic judge cannot pronounce, except for reasons of great weight, a sentence of civil divorce (in countries where that is recognized by law) in a case of a marriage which is valid before God and the Church. He must not forget that in practice such a judgment has not only bearing on the civil effects, but in reality rather leads to the false belief that the actual bond is dissolved and that the new one is consequently valid and binding.

Finally, per Dr. Peters’s advice, I did some googling at the Archdiocese of Detroit’s website. A search of “lawyer” and “attorney” bears precious few returns: annulment information, press releases about abuse cases, and links to Dr. Peters himself addressing the stripping of the name “Catholic” from a popular apostolate. Where are the resources for Catholic lawyers? Where is a digitized version of the Catholic Lawyers Guide? Is it no longer a valuable resource? Was Archbishop Dearden wrong to grant the Catholic Lawyers Guide an imprimatur? Did Father Connell, a moral theologian of some renown, have it all wrong from the get-go, or has moral theology “evolved” on the issue?

As a mere lay American lawyer, not versed in canon law, I have tried to educate myself using trustworthy sources bearing the imprimatur – including a major work coming out of Dr. Peters’s own diocese – and not just Catholic internet chat rooms and message boards of dubious authority. As a practical matter, I can tell you that most American Catholic lawyers don’t even have these issues on their radar. And as for them having enough free time among the demands of work and family to go web-surfing to hunt for potential moral issues that haven’t been presented to them – good luck with that. To demand such is to set these men and women up for moral failure.

I read and respect Dr. Peters’s blog, but his attitude here is lamentable, and his prescription for the civil legal profession is unfair. He challenges Catholic lawyers and judges to browse the internet to get answers to questions they might not even know exist, and then he castigates the conclusions of these dilettantes when he doesn’t like them.

My concerns for the effect of my professional practice on my soul are born of care and study. Canon law and canon lawyers, Dr. Peters included, owe every lawyer and judge direction on the issues of separation and divorce. Rather than hide behind straw-man arguments and descend into name-calling, why not provide some needed moral assistance?

St. Thomas More, pray for us!

* As an example of the post-Conciliar Church’s having “dealt many, many times with the duties of Catholic lawyers toward their clients and the civil legal system,” Dr. Peters offers only Pope John Paul II’s 2002 address to the Roman Rota. This is a limited document; although it does correctly restate a standard concerning lawyers’ cooperation with divorce, it is silent as to the permission question and its ramifications.